The Pursuit of Gender Equality in the Victorian Public Sector

Overview

The Victorian Parliament has made history, enacting the Gender Equality Act 2020 (Vic) (Act), which requires public service and public sector organisations, universities and local councils to publicly report on their progress against key gender equality indicators such as equal pay, sexual harassment, workplace composition and career progression practices. They will also be required to challenge workplace discrimination by preparing and implementing Gender Equality Action Plans and undertake gender impact assessments and gender equality audits of their workplaces.

The legislation is the first of its kind in Australia and delivers on a key commitment of the Andrews Labor Government to put measures in place to achieve gender equality in the Victorian public sector.

Introduction

In late November 2019, the Victorian Parliament introduced the Gender Equality 2019 Bill (Bill) as a founding reform of the Andrews Government's commitment to a "Victorian Gender Equality Strategy". On 25 February 2020, the Bill was passed by Parliament and will come into effect on 31 March 2021. The new laws will require public sector organisations, councils and universities to take positive steps towards achieving workplace gender equality and require them to promote gender equality in their policies, programs and services.

The Act establishes the Public Sector Gender Equality Commissioner (Commissioner) to implement and monitor the progress of organisations under the new laws and seek compliance from organisations where necessary.

While the Act introduces measures to promote, encourage and facilitate progress towards achieving gender equality in Victoria, it also recognises that gender inequality may be compounded by other forms of disadvantage or discrimination — including Aboriginality, age, disability, ethnicity, gender identity, race, religion, sexual orientation and other attributes. Organisations will be required to consider these other attributes when meeting their obligations under the Act.

To minimise the administrative burden, Parliament has intended that the reporting obligations under the Act align with other reporting obligations as much as possible, such as with the Victorian Public Sector Commission and the Workplace Gender Equality Act 2012 (Cth).

Who is covered by the Act?

The new laws apply to various organisations with 50 or more employees that operate within the Victorian public sector. Specifically, the Act applies to:

• public service bodies;
• public entities;
• special bodies;
• councils;
• Court Services Victoria;
• universities within the meaning of the Education and Training Reform Act 2006 (Vic);
• the Office of Public Prosecutions; and
• any entity prescribed under regulations made in accordance with the Act,

(together, Defined Entities).

General duty to promote gender equality

Under the new laws, Defined Entities have a general duty to consider and promote gender equality in developing their policies and programs, and in delivering services to the public, or that have a direct and significant impact on the public.

To comply with this duty, Defined Entities will be required to undertake a Gender Impact Assessment (GIA) of all new policies, programs and services that directly and significantly impact the public, as well as those up for review. The GIA requires an analysis of the differential effects of policies, programs and services on people of different genders, and the steps that will be taken by the organisation to address those impacts. If practicable, the GIA must also take into account that gender inequality may be compounded by disadvantage or discrimination that a person may experience on the basis of any of Aboriginality, age, disability, ethnicity, gender identity, race, religion and sexual orientation.

While this duty does not itself create a legal right or cause of action for any person, the Commissioner has the power to require Defined Entities to comply with their obligations under the Act.

Gender Equality Action Plans

As of 2021, the Act will require all Defined Entities to develop Gender Equality Action Plans (known as ‘GEAPs’) every four years. Defined Entities will need to submit their GEAPs to the Commissioner on or before 31 October every fourth year, and publish their GEAPs on their website. The process of developing a GEAP aims to help organisations identify gender inequalities across their workforce and develop strategies to improve gender equality outcomes in their workplaces over time.

As the starting point for the development of GEAPs, Defined Entities will be required to undertake a workplace gender audit by collecting data on the status of their organisation against gender equality indicators (prescribed in the Act and listed below). Where possible, the audit will also need to take into account other forms of disadvantage or discrimination that a person may experience, as well as any quotas or targets set for that organisation in any regulations made under the Act.

In preparing their GEAP, organisations must also consider gender equality principles (enshrined in the Act and described below); and must consult with the governing body of the entity, the employees, employee representatives and any other relevant persons. Defined Entities will be required to dedicate adequate resources to the effective development and implementation of their GEAP.

Reporting on progress towards gender equality

Every two years after submitting their GEAPs to the Commissioner, Defined Entities will be required to undertake an internal review of the progress made by the organisation against the plan over the previous two years and submit a progress report to the Commissioner.

The progress report must also address:

• whether any policies, programs and services have been the subject of a GIA and the actions taken by the organisation to ensure the needs of persons of different genders are addressed;
• the organisation's progress towards improving workplace gender equality as measured against the workplace gender equality indicators; and
• the organisation's progress towards meeting any prescribed targets or quotas.

Once the progress report has been submitted to the Commissioner, the organisation must publish it on its website.

To assist Defined Entities to understand their obligation to prepare a GEAP, we have prepared a visual guide at the end of this bulletin.

What are gender equality principles & indicators?

The Act enshrines gender equality principles and prescribes gender equality indicators that are required to be considered by Defined Entities in preparing their GEAPs, and will be used to measure their progress. The gender equality indicators must also be used by organisations in undertaking their gender workplace audits.

The gender equality indicators in the Act are modelled on the indicators in the Workplace Gender Equality Act 2012 (Cth) and represent the key areas where workplace gender inequality persists and needs to be improved. In addition to any indictors prescribed in regulations made under the Act, the workplace gender equality indicators are:

(a) gender composition of all levels of the workforce and of governing bodies; (b) equal remuneration for work of equal or comparable value across all levels of the workforce, irrespective of gender; (c) sexual harassment in the workplace; (d) recruitment and promotion practices in the workplace; (e) availability and utilisation of terms, conditions and practices relating to: (i) family violence leave; (ii) flexible working arrangements; and (iii) working arrangements supporting employees with family or caring responsibilities, and (f) gendered segregation within the workplace.

In preparing their GEAPs, organisations must also consider the following ten gender equality principles.

1. All Victorians should live in a safe and equal society, have access to equal power, resources and opportunities and be treated with dignity, respect and fairness;
2. Gender equality benefits all Victorians regardless of gender;
3. Gender equality is a human right and precondition to social justice;
4. Gender equality brings significant economic, social and health benefits for Victoria;
5. Gender equality is a precondition for the prevention of family violence and other forms of violence against women and girls;
6. Advancing gender equality is a shared responsibility across the Victorian community;
7. All human beings, regardless of gender, should be free to develop their personal abilities, pursue their professional careers and make choices about their lives without being limited by gender stereotypes, gender roles or prejudices;
8. Gender inequality may be compounded by other forms of disadvantage or discrimination that a person may experience on the basis of Aboriginality, age, disability, ethnicity, gender identity, race, religion, sexual orientation and other attributes;
9. Women have historically experienced discrimination and disadvantage on the basis of sex and gender; and
10. Special measures may be necessary to achieve gender equality.

Gender quotas & targets

While they have not yet been drafted, regulations may be enacted at a later date to set targets and/or quotas relating to the gender equality workplace indicators for specific entities or classes of entity. For example, regulations may be introduced under the Act to require that all university leadership teams have a quota of 50% women by 2024.

If a quota or target is prescribed, organisations must make reasonable and material progress towards meeting the quota or target. In assessing progress, the Commissioner will be required to consider the Defined Entity's:

(a) size and resources (including number of employees); (b) nature and circumstances, including any barriers to making progress; (c) obligations under any other legislation; (d) operational priorities and competing operational obligations; (e) ability to make progress (including practicability and cost); and (f) genuine attempts to make progress.

What happens if Defined Entities don't comply?

In the first instance, the Commissioner will consult with the organisation to try to resolve the matter informally and work collaboratively with the organisation to support them to meet their obligations under the Act.

If informal measures fail, the Commissioner may issue compliance notices where a Defined Entity has failed to submit their GEAPs or progress report, or has failed to make reasonable and material progress in relation to gender equality indicators, targets or quotas. A compliance notice can require the Defined Entity to take any action that is reasonably required to comply with the Act.

If a Defined Entity disagrees with the compliance notice, they will have 14 days to provide a written response to the Commissioner giving reasons for their disagreement with the notice. If the Commissioner confirms the compliance notice, Defined Entities will be able to apply to the Victorian Civil & Administrative Tribunal (VCAT) for a review of the Commissioner's decision.

Where organisations fail to comply with a compliance notice, the Commissioner has the power to:

• accept an undertaking from the Defined Entity to take action to comply with the Act;
• recommend that the Minster for Women take any action the Commissioner considers appropriate to ensure compliance with the Act;
• publish online the name of the Defined Entity and the requirement of the Act that they have failed to comply with; and
• apply to VCAT for an order directing the Defined Entity to comply with the notice.

Powers of the Public Sector Gender Equality Commissioner

The Commissioner’s primary purpose will be to promote and advance the objectives of the Act across the public sector, which will include providing educational and implementation support to Defined Entities, as well as monitoring, compliance and enforcement functions.

The Commissioner has also been given the power to undertake dispute resolution relating to a ‘systemic gender equality issue’ where the dispute is referred to the Commissioner in accordance with a term of an enterprise agreement or workplace determination of a designated body.

Key take-aways

• From the commencement of the Act on 31 March 2021, public service organisations, universities and local councils will have a general duty to consider and promote gender equality in the design and delivery of public-facing policies, programs and services, including by undertaking gender impact assessments.
• Public service organisations, universities and local councils will be required to undertake a workplace gender audit by 30 June 2021 and submit their Gender Equality Action Plans to the Commissioner by 31 October 2021.
• Organisations will be required to make reasonable and material progress in relation to workplace gender equality indicators and any prescribed gender equality targets and quotas.
• Every second year after submitting their Gender Equality Action Plans, organisations must report to the Commissioner by 31 October on their progress and the action taken within the previous two financial years to address workplace gender equality indicators, targets and quotas.
• If you are unsure whether these new laws will impact your organisation, do not hesitate to get in contact with a member of our Workplace Relations & Safety team.